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January 12, 2008

Should SCOTUS really be reviewing Missouri's lethal injection team?

One challenge for the death row inmates challenging a lethal injection protocol in the Baze case is that the execution record from Kentucky appears to be sound. But, thanks to this article in the St. Louis Post-Dispatch, we keep learning that the execution story from Missouri reads more like sensational fiction than fact. Here are snippets from the latest jaw-dropping discovery:

Before a Missouri executioner could go to Indiana in 2001 to help federal authorities put mass killer Timothy McVeigh to death, he had to take care of one detail: He needed permission from his probation officer to leave the state.

The request, by a licensed practical nurse from Farmington, set off alarms within the Missouri Division of Probation and Parole. At least one supervisor spoke out to an agency administrator. "As I stated to you previously, it seems bizarre to me that we would knowingly allow an offender, on active supervision, to participate in the execution process at any level," she wrote.

But that memo and others obtained by the Post-Dispatch show that high-level federal and state corrections officials did let the nurse make the trip — and continue to work on Missouri's lethal-injection team.

The use of someone with such legal troubles — two felonies plea-bargained down to misdemeanors for stalking and tampering with property — raises further questions about the expertise and backgrounds of the people the government entrusts to carry out the ultimate punishment.

An interesting ruling came from the Eighth Circuit on Friday concerning legal claims surrounding cummutation procedures. The full opinion in Snodgrass v. Robinson, No. 07-1463 (8th Cir. Jan 11, 2008) (available here), has lots of nuance. Here is how it starts:

State prisoner Sherryl Ann Snodgrass filed suit alleging that the Iowa Board of Parole (“the Board”), the Board’s members, and the governor of Iowa violated her constitutional rights by applying laws and regulations governing sentence commutation requests even though the laws were passed after her conviction. She alleges these acts violated the ex post facto clause of the United States Constitution and caused a deprivation of her Fifth and Fourteenth Amendment due process rights. U.S. Const. Art. I, § 10, cl. 1; Amend. V; Amend. XIV, § 1. The district court1 granted a motion to dismiss, finding commutation by the governor in Iowa to be an act of grace unrestricted by substantive laws or rules. The district court concluded that the speculative possibility of a lost opportunity for a commutation could not serve as the basis for a state’s ex post facto violation and that Snodgrass had no liberty interest in an act of grace by the governor. Accordingly, the district court held Snodgrass had not stated a cause of action for any constitutional violations. We affirm.

Genarlow Wilson headed to college

I was pleased to see this news report from Atlanta providing an update on the state and fate of Genarlow Wilson. Here are highlights:

In his two years in prison, Genarlow Wilson did a lot of reading. One of his favorite books: Rick Warren's "The Purpose Driven Life." The title could not be more appropriate for the next chapter in Wilson's highly publicized young life.

Nearly three months out of prison for committing a sex act with a teenager, Wilson, 21, plans to move into a dormitory at Morehouse College this weekend. He will live and study for free, thanks to the Tom Joyner Foundation, an educational nonprofit founded by the nationally syndicated radio personality. The foundation announced Thursday that it will cover the cost of tuition, room and board and books....

"I've been wanting to go to college for so long," said Wilson, who wants to major in sociology or education, with a minor in history. "I want to study and learn so I can be a mentor for others. It was very generous for [Joyner] to do that for me. I won't let him down."...

Wilson was released from prison Oct. 26 after the Georgia Supreme Court ruled that his 10-year sentence for having consensual oral sex with a 15-year-old girl was "cruel and unusual punishment." Wilson, who was 17 at the time of the incident, was convicted of felony aggravated child molestation. At the time, state law mandated a minimum 10-year sentence for the crime. The Legislature eventually changed the law to make such cases misdemeanors when they involved teenagers close in age....

Despite his ordeal, Wilson said he has no regrets. "I'm not mad about anything that happened, really," said Wilson, who now lives in Cobb County. "It helped me grow as a person, made me stronger, made me more ambitious. "I was at my lowest point in life. Now everything I wanted to do can finally happen."

I could not be happier that the Wilson story now has this happy ending; of course, there can be a lot more to the story in the years ahead. I hope that Wilson might get seriously involved in sentencing reform movements because his name and his story alone can help a lot of politicians and voters understand the harms of — and the challenges to undo — extreme mandatory minimum sentencing provisions.

January 11, 2008

Tenth Circuit rejects CVRA claim in shooting case

Though I have not yet seen a copy of any opinion, the Salt Lake Tribune is reporting here that the Tenth Circuit today ruled that "the parents of a woman killed in the Trolley Square massacre cannot speak at the sentencing of a man who illegally sold a handgun to the shooter." Here is more on a Crime Victims' Rights Act case that I find fascinating (and discussed here and here earlier this week):

A three-judge panel at the Denver-based court described the case as "difficult." However, the trio said, U.S. District Judge Dale Kimball in Salt Lake City was not "clearly wrong" in his conclusion that Vanessa Quinn was not a victim of Mackenzie Glade Hunter's illegal sale of a .38-caliber Smith & Wesson to Sulejman Talovic, who used the gun to kill her about eight months later.

The designation under the federal Crime Victims' Rights Act (CVRA) would have allowed Sue and Ken Antrobus of Cincinnati, as representatives of their daughter, to urge Kimball to impose a stiff punishment at Hunter's sentencing on Monday. They want Hunter to spend 99 months behind bars for the sale, which was illegal because Talovic was a 17-year-old minor at the time.

Paul Cassell, a University of Utah law professor who represents the Antrobuses, said the ruling was disappointing. He pointed out that other courts in different cases have differed on what standards to apply in looking at CVRA matters. "The 10th Circuit applied the strictest possible standard of review to the Antrobuses' claim, differing from the holdings of the federal appeals courts in New York and California," Cassell said. "Sadly, it appears that the Antrobuses would have won if their case had been filed in New York or California. I intend to ask the full 10th Circuit or the U.S. Supreme Court to review this case and bring the law in this Circuit into conformity with the law of the other circuits."...

Although he joined in the unanimous decision, 10th Circuit Judge Timothy Tymkovich wrote that he believed Kimball and prosecutors erred in not allowing the Ambruses to have access to some of the evidence that could show that Talovic's crime was a "reasonably foreseeable result of the illegal gun sale."

In addition to flagging a notable circuit split, Paul Cassell's comments here raise some interesting statutory interpretation and fed court issues. As I noted in this prior post, the provisions of the CVRA, 18 U.S.C. § 3771(d)(3), that gave the Antrobuses authority to seek mandamus in the Tenth Circuit does not obvious provide direct authority for seeking cert. And since the Antrobuses are technically not parties to the underlying criminal litigation, their standing for pursuing relief in the Supreme Court is unclear (and yet may soon be litigated). Where are Hart or Wechsler when I really need them?

UPDATE: Thanks to Professor Paul Cassell, I can now provide the Tenth Circuit Antrobus ruling for downloading below.

The ruling held that the Antrobuses had not shown an "extraordinary situation" justifying appellate court review. In doing so, the Tenth Circuit rejected earlier rulings from the Second Circuit and Ninth Circuit that give crime victims' the right to ordinary appellate review.

Professor Cassell also criticized the broader implications of the ruling today: "Unfortunately, the Tenth Circuit today has continued the sad legacy in this country of making crime victims' second-class citizens in the criminal justice process. The Circuit refused to give crime victims the ordinary appellate review that other litigants receive."

Marion Jones gets six-month federal prison term

As detailed in this Reuters article, "Disgraced Olympic sprinter Marion Jones was sentenced to six months in prison on Friday for lying to federal prosecutors about her steroid use." Here are more details:

U.S. District Court Judge Kenneth Karas imposed the sentence after Jones pleaded guilty to two charges last October, part of a stunning demise of the five-time medalist from the 2000 Sydney Olympics. Karas gave Jones six months for lying about steroid use and two months -- to run concurrently -- for a separate charge of misleading federal investigators about her knowledge of a check fraud case involving her ex-boyfriend, former 100 meters world record holder Tim Montgomery.

Jones, 32, became the biggest name in international sport to admit to using steroids with her guilty plea in October. She tearfully admitted to betraying the trust of her fans and country after years of vehemently denying she used performance enhancing drugs. She confessed to lying to federal investigators in 2003 when she denied knowing that she took the banned substance tetrahydrogestrinone (THG), known as "the clear," before the 2000 Olympics.

As part of her plea deal, prosecutors asked the judge to sentence her to between zero and six months in prison, and defense lawyers asked for mercy because she had suffered public humiliation.

Though I try to avoid injecting racial issues into matters that are clearly about a lot more than race, I cannot help but note that Barry Bonds and Marion Jones are the only two high-profile athletes to be formally prosecuted for lying about steroid use even though I have every reason to believe a number of other athletes have clearly lied or mislead federal investigators in the course of steriod investigations. I wonder what the astute folks at blackprof might think about this prosecutorial reality.

Graphic scholarship critiquing deterrence theory

A kind reader sent along this picture (and this link to a larger version) from the cartoonist Ted Rall, which provides a cogent critique of classic deterrence theory. Of course, deterrence theory has more to it than this cartoon suggests, but I am still moved to describe the cartoon as a great form of graphic scholarship on theories of punishment.

Great Sixth Circuit dissent laments “guidelinitis”

Describing a disease that likely puts more fear in the hearts of defendants than SARS or bird flu, Judge Merritt issues an amazing dissent today in US v. Sexton, No. 05-6412 (6th Cir. Jan. 11, 2008) (available here), that laments "the problem of guidelineism, or 'guidelinitis,' the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone." Here is the start of Judge Merritt's dissent from today's must-read case:

Except for those judges and lawyers who prefer to continue routine conformity to the old pre-Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened — continuing under the pretext that the guidelines are only “advisory” instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18. This case is one more example of the continuing problem, the problem of guidelineism, or “guidelinitis,” the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.

By ratcheting up the sentence, as is typical under the guidelines, piling aggravator on aggravator, the District Court, (as though Booker had never been decided), simply restored its old guideline sentences of 20 years in prison for Sexton, 16 years in prison for Legg, and 12 years in prison for Romans — all for a victimless drug crime.

Such harsh sentences are par for the course under the guidelines. The sentencing court imposed a harsh sentence without seriously considering mitigating family and personal factors or rehabilitation possibilities — all in line with the U.S. Sentencing Commission rules against the consideration of such individual factors in Chapters 5H and 5K of the Guidelines.1 This refusal to seriously consider individual factors, including rehabilitation, has been the most important characteristic of the work of the Sentencing Commission. From the beginning, the guidelines have emphasized collectives, not individuals; and individualized sentencing by federal judges, the weighing of aggravators and mitigators through a process of dialectic reflection and reconciliation, has become a relic of the past. The creation of these guidelines involved the breakdown of behavior into smaller and smaller parts and categories of aggravators or enhancements without consideration of other important individual factors.

Nebraska working to reform juve LWOP sentences

A helpful reader sent me this encouraging article headlined "Bill would give youngsters sentenced to life in prison hope for parole." Here are excerpts:

Nebraska would join eight other states that have prohibited sentencing young murderers to life in prison without parole under a bill introduced Thursday in the Legislature. Nebraska currently has 30 people who were sent to prison for life before their 19th birthdays....

Under the bill introduced by State Sen. Dwite Pedersen of Omaha, those convicted of a murder that was committed before their 18th birthday could be considered for parole after 25 years. Those convicted of a murder committed before their 16th birthday could be considered for parole after 20 years.

In a recent report, Nebraska youth advocacy group Voices for Children, which supports Pedersen's bill, said "life without parole is contrary to the mission of juvenile justice."... Eight states and the District of Columbia now prohibit the sentencing of youth offenders to life without parole. Colorado is the most recent to ban the sentence, acting in 2006.

Review finds that California's capital system "is a mess"

Students of the death penalty will not be at all surprised to learn that many agree that California's capital punishment system is badly in need of reform. As previewed here, a commission in California has started reviewing the state's death penalty system. This article from San Jose Mercury News reports on what the commission is hearing:

Leading judges and scholars provided a grim verdict Thursday on how well the California justice system is carrying out the ultimate punishment as a state commission began an unprecedented review of the death penalty. From California Chief Justice Ronald George, a death penalty supporter, to law professors who oppose capital punishment, the theme was consistent: The state's death penalty system is a mess.

George and six other witnesses, including a federal appeals court judge and Florida's former chief justice, named a string of reforms to improve death penalty justice in California, where there are now nearly 670 inmates on death row who typically spend decades awaiting execution. But for the most part, many of the proposals called for spending more money — just as Gov. Arnold Schwarzenegger elsewhere in the building was proposing dramatic cuts in education and prisons to cope with a $14 billion budget shortfall.

"The current system is not functioning effectively," George told the California Commission on the Fair Administration of Justice. "We're at a point now where choices must be made."

The hearing in Sacramento was the first of three the state commission has scheduled to explore the death penalty system. Thursday's focus was on proposals to ease the nation's biggest backlog of death row appeals, as well as studies that show California has applied the death penalty inconsistently.

Former Attorney General John Van de Kamp, chair of the commission, stressed that the panel will not address the "morality of the death penalty," only issues related to the handling of capital trials and appeals. Two years ago, the Legislature established the commission, a cross-section of prosecutors, defense lawyers and other justice experts, to examine the state's death penalty and other criminal justice issues.

This article in the Los Angeles Times has this summary of what transpired before the commission: "A procession of legal experts declared Thursday that the state's manner of meting out the death penalty had become so bogged down and dogged by inequities that wholesale repair was needed. But during the first of three hearings by a state criminal justice commission there was little agreement on what would constitute the best fix."

Colorado now starting serious reform efforts

As detailed in this local article, the new " Colorado Commission on Criminal and Juvenile Justice will sit down Friday to begin tackling questions on sentencing, recidivism and other factors contributing to the state's fast-growing prison population." Here are more details about another state's efforts to deal with prison growth issues:

Gov. Bill Ritter, who set up the commission and appointed the 27 members, will speak at the first session.... The commission was an initiative of the governor, a former Denver district attorney, said Lance Clem, spokesman for the Department of Public Safety. "The governor is concerned about the impact of incarceration on the state budget and how to find cost-effective alternatives to incarceration," Clem said.

The state has 23,000 inmates housed in facilities throughout the state and 10,000 parolees. Criminal justice officials expect the state's prison population to rise nearly 25 percent in the next six years. The Department of Corrections budget is now more than $702 million. Statistics indicate 90-95 percent of prisoners will be released, but one of every two ex-cons will return to prison within three years. The commission will look at recidivism rates and prisoner re-entry, Weir said. It also will look at prevention and alternatives to incarceration, he said.

January 10, 2008

Judge Posner and sentencing the 30-year-old virgin

Writing on behalf of the Seventh Circuit, Judge Richard Posner is in fine form with his ruling in US v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (available here). Though McIlrath covers somenotable and important post-Booker legal ground in the course of affirming a within-guideline sentence, it is the facts of the case and Judge Posner's prose that makes McIlrath a must-read. Here are just a few of many choice passages:

The defendant was 31 years old when he committed
the crime and had no criminal record. He was a loner
who had not had sex until the previous year, with a
woman who then rejected him, breaking his heart and
(he claimed) precipitating the incidents with the 12- and
(supposed) 15-year-old girls....

The defendant’s history and characteristics were relevant
in possibly suggesting both that imprisonment
would be a more severe punishment for him than for the
average Internet sexual predator, which would argue for
a lower prison sentence, and that he is less likely to repeat
his crime than the average such offender, which
would also argue for a lower prison sentence. The first
point goes to the retributive (“just punishment”) and
general-deterrence factors in section 3553(a), the second
to specific deterrence (to protect the public from further
crimes by this defendant). But neither was very persuasive.
As far as we know or the defendant’s lawyer or psychologist
attempted to show, the average man who trolls for
young girls in Internet chat rooms is no better adjusted
than the defendant. It is true that a sexual interest in
teenage girls is not abnormal in the sense that pedophilia
is; any female of reproductive age is a natural object of
desire on the part of a male, whether in our species or any
other. But the 12-year-old girl whom the defendant
propositioned may well have been prepubescent, and he
seemed not to care; and given that sex with 12- and 15-
year-olds is deemed a very serious crime in our society,
especially when the man is much older, a 31-year-old man
who tries to seduce these young teenagers in Internet
chat rooms is unlikely to be well adjusted.

As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker. Earlier this week, cousel for the defendant in White filed his supplemental brief (available below). This new brief make a number of nuanced arguments about the illegitimacy of sentences based on acquitted conduct in light of old and new Supreme Court decisions.

Especially for anyone involved in a case in which acquitted conduct enhancements may be involved, this supplemental brief is a must-read.

How many Booker pipeline cases are still in the system?

This Saturday, January 12, marks the three-year anniversary of the Supreme Court's Booker ruling, and the vast majority of legal issues now occupying lower courts are true post-Booker concerns. But, as evidenced by a ruling from the Ninth Circuit today in US v. Thornton, No. 06-50597 (9th Cir. Jan. 10, 2008) (available here), some courts and lawyers are still dealing with some Booker pipeline issues.

For folks still working on Booker pipeline cases, Thornton is a must-read. For others, not so much. In any event, here is the opinion's first paragraph:

David Thornton appeals from the district court’s decision to not re-sentence him after a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). He challenges both the ruling on remand and certain issues with respect to the original sentencing.

Sixth Circuit affirms above-guideline sentence based on Gall

More proof that the Gall decision will not always benefit defendants comes today in US v. Klups, No. 06-1931 (6th Cir. Jan. 10, 2008) (available here), which affirms an above-guidelines sentence by relying heavily on Gall. Here is how the opinion ends (some cites tweaked):

Klups argues that because his sentence is “twice the high end of the advisory Guideline range” the district judge had to offer a “compelling justification” for the sentence. Prior to the Supreme Court’s opinion in Gall, we held “that the farther the sentencing court varies from the guidelines range one way or another, the more compelling the justification for that variance must be.” United States v. Funk, 477 F.3d 421, 426 (6th Cir. 2007). The majority opinion in Gall, however, “reject[ed] . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range . . . [as well as] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” 128 S. Ct. at 595. The Court in Gall explained “why the Court of Appeals’ rule requiring ‘proportional’ justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220 (2005).” Id. at 594. Certainly, in considering the § 3553(a) factors in the course of determining “that an outside-Guidelines sentence is warranted,” the district judge “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 597. Gall, however, further clarified the distinction between the role of the district courts and that of the courts of appeals. After Gall, “we no longer apply a form of proportionality review to outside-Guidelines sentences” ... United States v. Bolds, No. 07-5602, 2007 WL 4440403, at *10 (6th Cir. 2007). We conclude, in the words of the Supreme Court in Gall, that “[o]n abuse of discretion review, [we give] due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 128 S. Ct. at 602.

Why is Senator Sessions really blocking the Second Chance Act?

I have only done occasional blogging on the federal Second Chance Act (see here and here), in part because I was waiting and hoping for this long-stalled legislation to finally become law. But now I see from this news article that "Sen. Jeff Sessions, in the final days of the congressional year, temporarily blocked legislation to help former prisoners re-enter society because of concerns that it would dramatically increase federal spending on untested programs." Here are more details from the article:

The Alabama Republican's staff asked for more time to review the Second Chance Act, which passed the House in November by a wide margin and has broad bipartisan support in the Senate. Sessions supports the goal of helping released prisoners become productive citizens and less likely to commit another crime, his spokesman Stephen Boyd said Wednesday. But the proposal increases spending on grants for state and local governments from $16 million to $55 million. Sessions argued that some of those programs have not been fully evaluated and may duplicate existing programs.

The grants can go toward helping the recently incarcerated find employment, housing, substance abuse treatment and other assistance. "We are looking at ways that we could improve the bill's language in those respects," Boyd said. Overall, the proposed legislation would spend about $165 million annually on grants, research, career training, family counseling and mentoring, according to the Council of State Governments Justice Center, which endorses the bill.

With about 1.7 million people in state and federal prisons and most of them serving less than a life sentence, advocates say the issue of recidivism has attracted liberals and conservatives who want to keep people from cycling back through, costing taxpayers money and causing prison crowding. Almost 68 percent of prisoners are rearrested within three years, according to Department of Justice statistics. "A modest expenditure to help transition offenders back into the community can save taxpayers thousands of dollars in the long run," Rep. Chris Cannon, R-Utah, said when the bill passed the House 347-62....

I have a hard time accepting at face value the claim by Senator Sessions that he is worried that the current version of the Second Chance Act might allocate some small amount of monies to "untested programs." Our nation is currently spending more than $200 million every single day on "untested programs" in Iraq, and there is little reason to have much faith that we are ever going to get a decent return on our investments there. In contrast, lots of research shows that monies spent up-front on re-entry programs is a terrific investment that, as Rep. Cannon noted, can save lots of money (and also prevent much non-economic suffering to potential crime victims) in the long run.

It bears remembering that the head of Senator Sessions' own political party is, in a sense, the chief sponsor of the Second Chance Act. The bill can be traced back to this wonderful passage in President George Bush's 2004 State of the Union address:

Tonight I ask you to consider another group of Americans in need of help. This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work, or a home, or help, they are much more likely to commit crime and return to prison. So tonight, I propose a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups. America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.

How sad that, a full four years after President Bush made this pitch, Senator Sessions is balking about the costs of a bill that only provides roughly half the funds that the President initially proposed. Not only am I disappointed with Senator Sessions, but I am also troubled that none of the prominent Senators running for President have made an active or vocal pitch for getting this legislation finally passed.

Federal prison population soon to exceed 200,000

As detailed in this page of quick facts about the federal prison population, as of December 29, 2007, the federal inmate population was 199,616. Because this population in recent years has tended to grow at least a few hundred persons each month, it seems very likely that very soon the federal inmate population will exceed 200,000 total persons.

Notably, according to this 1995 annual report from the federal Bureau of Prisons, it was only a little more than 10 years ago that the federal prison population surged past 100,000 total inmates. Moreover, the latest data indicate that more than half of the federal inmate population now are incarcerated for drug offenses. Thus, there are now more persons serving federal prison time just for drug offenses than comprised the entire federal prison population just over a decade ago.

I am not sure if I am troubled more by this basic data or by the fact that precious few public officials, media pundits or academics seem seriously interested in examining the remarkable modern growth in the federal prison population. While there seems to an endless obsession with the few thousand murderers who are on death row, stunningly little attention is paid to the hundreds of thousands of individuals subject to severe terms of incarceration for having committed far less serious crimes. I suppose I should just add a question about the federal prison population to this list of questions I wish the media would ask all the wannabe presidential candidates.

Concerns down under about extreme plea discounts

As detailed in this new article from Australia, a review of sentencing breaks for pleading guilty is underway down under. Here are details:

Community outrage over criminals getting lighter sentences for eleventh-hour guilty pleas to lesser charges has prompted a review of NSW guidelines. Attorney-General John Hatzistergos has asked the NSW Sentencing Council to review plea bargaining and a number of other issues relating to how reductions in sentences are determined.

"While reduced sentences for guilty pleas have a part to play in the justice system, it is important they are applied consistently and in accordance with clear principles," Mr Hatzistergos said in a statement today. "This review is in response to police and community expectations and concerns for greater accountability regarding sentence discounts."

Anger over sentence discounting reached boiling point last month when John Taufahema was sentenced to a minimum seven years jail over the 2002 shooting of Senior Constable Glenn McEnallay. Police and Senior Constable McEnallay's family argued Taufahema was essentially rewarded for pleading guilty to the lesser charge of manslaughter to save his own neck....

The NSW Sentencing Council is chaired by Justice James Wood and includes representatives from victims groups and the wider community.

This story is telling against the backdrop of debates over these issues in the US. Though plea discounts sometimes become an issue of controversy here, a related problem is the extreme sentences some offenders will receive principally as a result of exercising their constitutional right to a jury trial. Nevertheless, despite lots of high-profile examples of extreme "trial penalties" (e.g., the sentences imposed on Jeff Skilling and the border agents), to my knowledge no government review is afoot to assess whether some defendants are being punished to harshly simply for contesting evidence at a trial.

January 9, 2008

Additional filings in Tenth Circuit CVRA case

As discussed here, the Tenth Circuit has to rule this week on a petition from the parents of a slain woman based on the Crime Victims' Rights Act that seeks "to declare their daughter a victim in a crime that took place months before her death — the illegal sale of a handgun to the shooter." There were additional filings in this speedy CVRA matter, which can be downloaded here: (1) the defendant's opposition to the parents' petition, and (2) a "no response" letter from the government:

Notable (split-the-difference?) capital commutation in Ohio

As detailed in this news report, Ohio death row defendant "John Spirko will not be executed for the 1982 murder of Betty Jane Mottinger. But he'll never get out of prison, either." Here more from the news report:

Citing the lack of physical evidence in the 1982 murder and what he described as "slim residual doubt" about Spirko's guilt, Ohio Gov. Ted Strickland said today that executing the death-row inmate would be "inappropriate." Instead, Strickland commuted Spirko's sentence to life in prison without parole.

Spirko attorney Tom Hill said today that Spirko was relieved at the governor's decision to spare him from lethal injection. But Hill, who as Spirko's lawyer has described the evidence of Spirko's actual innocence as overwhelming, expressed disappointment that Strickland did not pardon his client outright, or commute his sentence to time already served and release him.

Governor Strickland's statement in support of this commutation is available at this link. Here are key passages from that statement:

John Spirko was convicted, by a jury, of a heinous murder. At times, when he wasn't denying having committed the murder, he appears to have admitted doing so. Ohio and federal trial, appellate and supreme courts reviewed his conviction and upheld it. Alibi claims and claims regarding evidentiary weaknesses, including more recently developed theories and interpretations of evidence, were considered by those courts and rejected. In addition, Governor Taft and I granted Mr. Spirko, collectively, seven reprieves to allow for the analysis of DNA related to the case. Once completed, these DNA tests neither exonerated Mr. Spirko nor implicated him or anyone else....

Nonetheless, I have concluded that the lack of physical evidence linking him to the murder, as well as the slim residual doubt about his responsibility for the murder that arises from careful scrutiny of the case record and revelations about the case over the past 20 years, makes the imposition of the death penalty inappropriate in this case....

Based on [my] review, I have decided to commute Mr. Spirko's sentence to life imprisonment without the possibility of parole.

So, apparently my state's Governor is not convinced Spirko was wrongly convicted. And yet, Gov. Strickland was concerned enough about his guilt that he does not want the state of Ohio to carry out the sentence a jury imposed and that numerous courts have affirmed. And yet, despite these concerns about guilt, the Governor believe he should sentence Spirko to spending the rest of his days on earth confined to a small cage.

For a host of political reasons, I understand Gov. Strickland's interest in splitting the difference here. If Spirko is in fact innocent, this commutation is a grave injustice to him; if Spirko is in fact guilty, this commutation is a grave injustice to the victims of his crime and the legal system. So, I am not sure if Solomon would be proud of embarrassed by such a baby-splitting decision.

What happened at today's USSC hearing?

As previewed here, this morning the US Sentencing Commission held a public meeting, and this official agenda indicated that the meeting was to include ""Possible Vote to Promulgate Temporary Emergency Amendment," Possible Votes to Publish Guideline Amendments and Issues for Comment" and "Possible Vote to Publish Amendment to Rules of Practice and Procedure."

Can anyone who was in attendence at this meeting provide a report on what happened have any info on what the USSC is up to?

How the media can do better: ask the candidates tough crime and punishment questions

I am quite pleased that the results in the first state primary Tuesday keeps the presidential nomination battles going strong and that, as Lou Dobbs asserts here, political pundits "took one in the teeth last night" and now the media can and should "summon courage to report on issues."

Of course, the issues I want to see covered a lot more are criminal justice issues. Here are just a few challenging questions that I would like to see posed to all the candidates:

1. What is your view on the faith-based prisons movement and will you increase federal funding for, and research on, faith-based prison and reentry programs?

2. Do you support the (stalled?) federal Second Chance Act and will you make its passage a priority in the first 100 days of your administration?

3. What is your perspective on the federal death penalty? Will you instruct your Attorney General to continue, or to reverse, the recent trend of increased federal capital prosecutions?

4. Do you support federal mandatory minimum sentences and will you make review and of these laws a priority in the first 100 days of your administration?

5. Are you troubled by the nationwide increase in incarceration levels at both the state and federal levels? If so, what might you do as President to reverse prison growth trends?

6. Can you name all of the Commissioners on the US Sentencing Commission? (This last one is a gotcha question, but I'd like to see how the candidates would deal with having a Cliff Claven Final Jeopardy moment.)

Readers are, of course, encouraged to suggest additional questions for the candidates in the comments.

Rapid appeal for victims' rights comes before Tenth Circuit

As detailed in this prior post, last week a federal district court rejected a claim, based on the Crime Victims' Rights Act (CVRA), made by the parents of a woman killed in a shooting spree that they be deemed victims of the crime of a defendant who illegally sold the handgun used by another to kill their daughter. The parents seek victim status in order to be able to speak at the sentencing of the gun sale defendant and so that they can seek restitution from this defendant. (Notably, the actual shooter was killed during his rampage, and the illegal gun sale took place quite some time before the shooting.)

Notably, the CVRA has specific provisions authorizing an immediate appeal (technically in the form of a petition for a writ of mandamus) and requiring an immediate ruling on these kinds of disputes over victims' rights. Thus, as this new Salt Lake Tribune article details, the parents have now asked the Tenth Circuit "to declare their daughter a victim in a crime that took place months before her death — the illegal sale of a handgun to the shooter."

Intriguingly, former-judge, now-professor Paul Cassell is representing the parents in the Tenth Circuit, and he is arguing that the district judge (his former colleague) erred when concluding that the connection between the criminal sale of the firearm and the shooting was too attenuated to designate the daughter as a victim of the gun sale crime under the CVRA. The petition to the Tenth Circuit (which can be accessed here) makes a number of interesting points about both the CVRA and legal causation principles. Indeed, because this case turns principally on causation issues, the forthcoming ruling from the Tenth Circuit should be of great interest not only to victims' rights advocates, but also anyone interested in bringing tort suits against gun manufacturers and gun sellers from harms resulting from their guns.

Among the many fun aspects of this litigation is how quickly we will get a ruling from the Tenth Circuit. A provision of the CVRA, 18 U.S.C. § 3771(d)(3), the Tenth Circuit must rule in this matter within 72 hours. That provision also requires that, if relief is denied to the victim, the "reasons for the denial shall be clearly stated on the record in a written opinion" (although it is unclear whether this written opinion has to be handed down within the 72-hour period for a circuit ruling).

Because the CVRA is such a notable and distinctive piece of legislation, federal court and legislation gurus should also be very interested in this case. For example, here are just a few late-night structural questions that came to mind as gave pondered this speedy litigation:

Does Congress clearly have the power to demand that a circuit court issue a decision within 72 hours? Does the SG's office have an obligation (or even a right) to raise this concern?

Are the "rapid return" provisions of the CVRA even applicable when disputed legal question is whether a particular person is even covered by the CVRA? Does the SG's office have an obligation (or even a right) to raise this concern?

If a Tenth Circuit panel denies relief and en banc review and/or cert review is sought, should courts continue to feel an obligation to "fast-track" this litigation?

Why haven't these issues come up a lot more in the 3+ years since the CVRA's enactment?

January 8, 2008

Local conditions Cavera case going en banc in Second Circuit

A helpful reader alerted me to the fact that, late last year, the Second Circuit decided (apparently sua sponte) to consider en banc the case of US v. Cavera (05-4591). As some may recall (and as detailed in posts here and here), Cavera is the fascinating case in which Judge Sifton decided to enhance a sentence above the guideline range in a gun case because he viewed gun possession in urban spots like NYC to be especially bad. Such "local conditions" considerations would seem to undermine national sentencing consistency, but they also seem like a good idea. It will be fun to see what the always thoughtful Second Circuit does with this case en banc.

Here is the basic notice from Pacer about the circuit court's collective interest in this case:

12/20/07 Order filed stating On December 3, 2007, a majority of the active judges of the Court voted to hear this case in banc. On December 12, 2007, the Court entered the order that the case be heard in banc. See Fed. R. App. P. 35(a). The submissions should consider the effect of Gall v. United States, No. 06-7949, 552 U.S. --- (2007), and Kimbrough v. United States, No. 06-6330, 552 U.S. --- (2007).

The petitioner's brief and appendix shall be filed by January 25, 2008. The respondent's brief, and any briefs amicus curiae, shall be filed by February 22, 2008. The petitioner's reply brief shall be filed by March 7, 2008. While the briefing schedule of the parties is to be strictly observed, extensions of the time to file briefs amicus curiae will be considered on a case-by-case basis. Oral argument will be held on March 27, 2008 at 3 p.m. in the Ninth Floor Courtroom of the United States Courthouse, 500 Pearl Street, New York, New York. We invite briefs amicus curiae from interested parties.

Notably, as detailed here, there was this terrific article in the New York Sun about the case, but the article did not report that the full Second Circuit was now to hear the case.

Because the court asked so nicely, I am already thinking about what I might say in an amicus brief. I tend to support consideration of local conditions at sentencing, largely because I see the concept of "national sentencing uniformity" almost as a contradiction in terms given diverse federal caseloads and prosecutorial policies in the nation's 94 districts. But, that said, I do think there have to be some limits regarding how much local conditions can and should eclipse national sentencing norms in the sentencing of individual cases.

Effective review of Gall and Kimbrough basics

I was pleased to receive and now post en effective basic summary of the Supreme Court's work in Gall and Kimbrough. Here is the e-mail I received describing the effort:

Attached is a Summary by David Debold from Gibson, Dunn & Crutcher LLP Entitled: “Two Supreme Court Decisions in December 2007 Highlight the Advisory Nature of the Federal Sentencing Guidelines”. David Debold is the Editor of the Criminal Justice Section Publication Practice Under the Federal Sentencing Guidelines, click Practice Under the Federal Sentencing Guidelines for information on the publication.

What golf rule reform can teach everyone about sentencing reform

A colleague who is a fellow golf nut sent me an e-mail from the US Golf Association announcing rule changes for 2008. Here is the heart of the announcement:

2008/2009 Rules Of Golf: Learn about the modifications to the Rules effective Jan. 1, 2008. Changes to the Rules generally fall into two broad categories:

those that improve the clarity of the Rules

those that reduce the penalties in certain circumstances to ensure that they are proportionate.

Intriguingly, know that some of the most thoughtful persons working on sentencing issues are also golf nuts, and they are trying to improve the clarity of sentencing rules and trying to "reduce the penalties in certain circumstances to ensure that they are proportionate." Indeed, given the mess that the Supreme Court and others have made of sentencing rules lately, perhaps this is a cosmic sign that the Justices and others working on sentencing law and policy need to hit the links a lot more (and, of course, invite me along).

California debating death in a fitting forum

As suggested here, I generally view most arguments against the death penalty to be stronger policy arguments than constitutional claims. Consequently, I was pleased to see this article from the San Jose Mercury News, headlined "California to review use of death penalty in state," reporting on a broad examination of the operation of death penalty in the state with the largest death row in the country. Here is how the thoughtful piece begins:

Just a few weeks ago, an Alameda County judge sentenced an Oakland man to death for raping and killing an 11-year-old girl, the latest addition to what is by far the nation's longest roster of condemned inmates. The convicted killer, Alex Demolle, will now enter a legal twilight zone that has made California the most schizophrenic death penalty state in the country. Fewer juries are sending murderers to death row, but the state nevertheless now has nearly 670 of them awaiting execution, nearly double the number of Texas or Florida.

California would have to execute one inmate a day for nearly two years to clear its death row. And the past 20 years have made it clear the state has no appetite for that prospect — just 13 inmates have been executed since 1978. Meanwhile, many more — 39 inmates — have died of illness or old age, six of them last year. Fourteen have committed suicide.

Against that backdrop and concerns about the fairness of how counties across the state use the death penalty, a key state justice commission this week will begin to take the closest look in years at California's awkward approach to enforcing capital punishment. The state Commission on the Fair Administration of Justice, which was established two years ago with an eye toward examining the state's death penalty, on Thursday will hold the first of three hearings on the subject.

Padilla sentencing already creating headlines

As detailed in this AP article, Jose Padilla is in federal court today for the start of sentencing proceedings: "U.S. District Judge Marcia Cooke, an appointee of President Bush, has set aside three days beginning Tuesday to hear testimony and legal arguments before imposing sentences on Padilla, Adham Amin Hassoun, 45, and Kifah Wael Jayyousi, 46." Notably, as detailed in this New York Times article, the broader stories in the war on terror might get continued attention during these proceedings:

Citing disclosures that the federal government had concealed, and in some cases destroyed, videotaped interrogations of Al Qaeda operatives, a defense lawyer in the case of Jose Padilla, the Brooklyn-born convert to Islam who was convicted as a terrorism conspirator, asked a federal judge on Monday to disclose any recordings that might bear on Mr. Padilla’s recruitment into the terrorist organization. The judge rejected the request, saying she had reviewed relevant material and concluded that the government had handed over all the required evidence.

January 7, 2008

More on Irizarry and notice requirements after Booker

Though lost in all the death penalty action, last Friday the Supreme Court granted cert on an important post-Booker issue in Irizarry v. United States (06-7517). SCOTUSblog here provides the opinion below and the cert papers, and this is the question presented as set forth by the government's brief in opposition:

Whether Federal Rule of Criminal Procedure 32 requires a district court to give the parties advance notice before imposing a sentence outside the applicable advisory Sentencing Guidelines range based on the criteria in 18 U.S.C. 3553(a), when the grounds for the non-Guidelines sentence are not identified in the presentence report or the parties’ prehearing submissions.

As regular readers know, this issue has sharply divided circuit courts and there are pretty sound arguments to be made on both sides of this issue in light of Booker's transformation of the guidelines from mandatory to advisory.

Intriguingly, though, it seems that both the defendant here and the government believe that Rule 32 should be read to require a district court to give advance notice to the parties about possible grounds for imposing a non-guideline sentence. Thus, it is unclear whether and how the Justices will get briefing in support of the position that no notice is required (though these arguments are pretty well developed in lower court opinions).

ACLU urging candidates "to oppose mandatory minimum sentencing"

Perhaps in response to reports that the Clinton campaign team was criticizing Barack Obama's opposition to federal mandatory minimum sentences (details here), the ACLU has issued this new press release titled "ACLU Hopes Candidates Won’t Make Straw Man of Sensible Sentencing Reforms." Here is how the release begins:

The American Civil Liberties Union Washington Legislative Office, a non-partisan organization, believes Senator Hillary Clinton (D-NY) was mistaken when she called ending mandatory minimum sentences a controversial position. The organization urges all candidates, from all parties, to oppose mandatory minimum sentencing and support legislation to close the sentencing disparities between crack and powder cocaine. The policy of mandatory minimum sentencing has led to thousands of people serving longer jail sentences and has contributed to the unfair sentencing disparities between federal crack and powder cocaine offenses that disproportionately affect people of color.

Some parting(?) thoughts on Baze and the lethal injection debate

Though I doubt I will be able to resist posting on the Baze case in the weeks and months ahead, I am eager to stop blogging about lethal injection litigation and to focus on all the other great (mostly non-capital) sentencing issues that now abound. I have come to realize that this feeling results largely for my sense that the petitioners in Baze are making great policy arguments and terrible constitutional claims.

As I have said for quite some time and in various scholarly venues (see here and here and here), refining lethal injection protocols seems most properly a job for legislatures, not for courts. To their discredit, some states have been awfully cavalier and secretive about modern lethal injection protocols. But, as I said in this recent PENNumbra debate, even if everyone agrees as a policy matter that states should be more careful and conscientious in their execution methods, I find troubling the argument that all death penalty states, after having adopted an improved, but still perhaps imperfect execution method, now have a constitutional obligation to make their lethal injection protocols even more perfect in order to minimize any possible risk of pain to the murderer being executed.

I make this point and others with a lot words in this short podcast about the Baze oral argument that I did earlier this afternoon. And, for anyone interested in a review of the day in Baze posts and my prior scholarly writings on lethal injection protocols, here is a recap:

Georgia Supreme Court considers banishment as punishment

Thanks to this post headlined "Virtual Banishment" from Of Counsel, I saw this interesting AP article entitled "Ga. court to hear challenge to state's banishment policy." Here are some excerpts:

Georgia's judges are barred from banishing criminals from the state, but some use a legal maneuver to get around the ban: Restricting the offenders from all but one of the state's 159 counties. That often means confining selected offenders to remote counties in rural Georgia, or hard-to-reach spots near the Okefenokee Swamp....

[This issue arises] Monday in Georgia Supreme Court as justices hear the case of Gregory Mac Terry, who was banished from every county but one after pleading guilty to assault and stalking charges.... Terry was sentenced to 20 years in prison and 10 more years on probation — with the condition that he be banned from all Georgia's counties except Toombs County in southeast Georgia.

The banishment effectively blocked his release from prison in June 2001 when he was told he had a chance to be paroled if he completed a work release program. But he couldn't start the program because he was banned from living and working in Fulton County, a development that set his parole date back until June 2009, according to his lawsuit....

Terry's attorney, McNeill Stokes, said the [banishment] practice is an "unconstitutional outrage" that's aimed at getting his client — who has no family or job in Toombs County — to flee the state. "It's a throwback to the dark ages," said Stokes. "The whole point behind this is zealous prosecutors wanting to get rid of problems in their counties."

Eighth Circuit relies on Gall to affirm significant upward variance

As I have noted before, the fact that Gall seemed to loosen the stardards for appellate review of variances will not always benefit defendants. Proof comes today from the Eighth Circuit, which today in US v. Braggs, No. 07-1148 (8th Cir. Jan. 7, 2007) (available here), affirms an above-guidelines sentence by relying heavily on Gall. Here is how the opinion starts:

Keisha Braggs pled guilty to fraudulent use of an unauthorized access device, which carries a maximum term of 10 years of imprisonment. 18 U.S.C. § 1029(a)(2). Although the Sentencing Guidelines recommended a sentence of 15 to 21 months, the district court imposed a sentence of 48 months. Braggs challenges her sentence as unreasonable. Guided by the Supreme Court’s decision in Gall v. United States, 552 U.S. ___, No. 06-7949 (Dec. 10, 2007), we affirm.

Good news on the violent crime rate

As detailed in this AP report, crime "dipped slightly for the first half of 2007, the FBI reported Monday, signaling a stop to a 2-year increase in violence nationwide." Here are more details:

Violent crime — including murders, rapes and robberies — dropped by 1.8 percent between January and June last year, the FBI's preliminary data show. Property crimes also decreased, including a 7.4 percent drop in car thefts and arsons by nearly 10 percent. But violent crime appears to be rising, if slightly, in small cities and rural areas, the data show.

A lot more details are available here from the official FBI website. It has this great start to this new data: "It’s a good start: in the first six months of 2007, crime rates dropped for the first time in two years. Nationwide, violent crime fell 1.8 percent and property crime 2.6 percent compared to the same period last year."

Early reflections on the Baze oral argument

Though we don't agree on all issues, Orin Kerr and I seem to be sharing a lot of the same instincts about the Baze case. Specifically, I think Orin's analysis here of the Baze oral argument is spot-on, and I fully agree with these two statements in his strong post:

(1) On the whole I thought it went very well for the Respondents, the Commonwealth of Kentucky. The Justices were clearly frustrated with the lack of record supporting the Petitioners' side: they seemed to think that the issue of alternatives to the three-drug protocol hadn't really been raised below, and they thought the claims about the different risks associated with different protocols were speculative.

(2) Roy Englert was excellent as counsel for Kentucky. He came off as the reasonable man, avoided any grand claims, conceded arguments he didn't need, and stuck to the record. It seemed to work: even Justice Stevens seemed persuaded that the record in this case showed that Kentucky was actually pretty careful and that there wasn't much of a risk of error.

Similarly, Lyle Denniston writing here at SCOTUSblog had this fitting assessment: "Justice John Paul Stevens, the Court's most liberal member, suggested explicitly at one point that the state of Kentucky probably should win in this case, if the issue was solely how well it administers the protocol in order to assure that death occurs without great pain and with dignity. But, he said, that would leave open the issue of whether the protocol itself — the combination of three drugs — could pass constitutional muster."

A great animal irony in the Baze oral argument

Through a C-Span link, I am listening to a rebroadcast of this morning's Baze oral argument. During questioining of Kentucky's lawyer defending its lethal injection protocol, Justice Stevens made much of the fact that Kentucky state law prohibits vets from using a similar protocol for putting down animals. During the dialogue, an amazing irony hit me:

It seems that, purportedly to achieve a more humane lethal injection protocol, it seems that some are arguing that the Eighth Amendment requires that condemned defendants should be treated more like condemned animals. (Readers are now encouraged to think of a funny Michael Vick firing squad joke to add here.)

Lots of Gall and Kimbrough GVRs this morning from SCOTUS

The first 17 pages of this new order list released by the Supreme Court this morning are taken up a whole big bunch of Gall and Kimbrough GVRs — which means the Supreme Court Granted the petition for review, and then Vacated the circuit court's decision below, and then Remanded the case for further consideration by lower courts in light of the decisions in Gall and Kimbrough.

I quickly counted about 75 GVRs in those pages and same the names of many of the defendants in some of the better-known crack/powder circuit cases — e.g., Pho from the First Circuit, Eura from the Fourth Circuit, Jointer from the Seventh Circuit, Spears from the Eighth Circuit. These GVRs are not that surprising, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch.

Relatedly, I would be grateful if readers could spotlight in the comments any other notable cases appearing on — or missing from — this long GVR list.

Putting Baze et al. in perspective

This morning, largely because of the Baze case to be argued in the Supreme Court, most of the morning posts at How Appealing link to death penalty articles or commentary. Among the best of the group is this new piece from Benjamin Wittes from The New Republic, titled "The Death Clock: Don't count out the death penalty yet." Here is how it starts:

These are heady days for anti-death penalty activists. New Jersey has taken the plunge and legislatively repealed capital punishment — becoming the first state in the modern era to do so. Today, the Court will hear arguments over whether the specific drug cocktail used in lethal injections constitutes cruel and unusual punishment by causing too much pain to the condemned. By taking up the issue, the Court has effectively frozen all executions in the nation. And no state other than Texas (a significant exception) executed more than three people last year. The news has the anti-capital punishment Death Penalty Information Center (DPIC) proclaiming the "execution chambers silent" as the Garden State charts a "new direction" and declaring both actions symbolic of the "broad changes that have been occurring in the death penalty around the country."

Curb your enthusiasm. The death penalty is, like the Iraqi insurgency, not quite yet in its death throes. While capital punishment appears on the wane right now, neither New Jersey's action nor the temporary national freeze — particularly the latter — may mean all that much in the long run.

The secret story behind the Baze case

In just a few hours, the Supreme Court will hear oral argument in the Baze lethal injection case, and this new Los Angeles Times article provide insights into an important back-story surrounding the case. Here is how the article starts:

The legal battle over lethal injection, which comes before the U.S. Supreme Court today, has been conducted in unusual secrecy, with courts permitting states across the country to keep from lawyers and the public precisely how death row inmates are executed.

In state after state, defense lawyers contending that the execution method inflicts unnecessary pain complain that judges have denied them access to crucial information, including the identity of executioners and details about the drug cocktail used in the fatal injections. State officials have successfully argued that releasing such information could compromise prison security and the safety of personnel. But lawyers for death row inmates say the restrictions have hampered their efforts to question not only the drugs, but how they are administered.

Among many great aspects of this article is that it quotes Alison Nathan from this recent PENNumbra debate in which I participated. The article also raises the serious question of whether this case would even be before SCOTUS if states had been more transparent about their lethal injection protocols.

Notably, as detailed here, on state has recently been forced to be very transparent about its execution protocols. Pursuant to a state judge's order, the Ohio Department of Rehabilitation and Correction has now produced extensive materials on its lethal injection protocol. (The ALCU has made available here the 632-page binder of Ohio documents showing how the state executes; I am hoping Ohio's good work in this arena will bring good karma in another big event taking place in another arena today.)

Important memo analyzing crack retroactivity issues

Thanks to the folks at the Office of Defender Services, this website now has made available this impressive and important 23-page memorandum that seeks to provide "a comprehensive analysis of issues that may arise in the retroactive application of the crack cocaine guideline amendments." The memo is dated January 2, 2008, and was authored by the National Federal Defender Sentencing Resource Counsel. Key topics covered in this memorandum include:

the right to counsel

the right to a hearing, and the right for the defendant to be present

the right to a full resentencing in accord with Booker v. United States

obtaining early release for defendants eligible for release before March 3, 2008

retroactive application of the amendments in special cases, including career offender and Armed Career Criminal cases.

Jose Padilla sentencing hearing this week

As detailed in this article from the South Florida Sun-Sentinel, a high-profile sentencing hearing begins this week in a Florida federal district court. Here are the basics:

Since his arrest in May 2002, Jose Padilla has been locked in a military brig without charges, harshly interrogated and, finally, tried and convicted for supporting terrorism. This week, a Miami federal judge will decide whether the former Broward resident prosecutors call a "trained al-Qaida killer" and defense lawyers describe as an "impressionable Muslim convert" should ever walk free again....

Padilla, 37, Adham Amin Hassoun, 45, and Kifah Wael Jayyousi, 46, were convicted Aug. 16 of three charges in one of the most high profile terrorism trials since the Sept. 11, 2001, attacks. Federal guidelines recommend a term of 30 years to life for Padilla and life for Hassoun and Jayyousi. However, [U.S. District Judge Marcia] Cooke is free to deviate from those guidelines and impose virtually any sentences, which is why a bitter court fight is expected. The sentencing hearing, which begins Tuesday, could last several days because of numerous disputes, including some related to Padilla's 3 1/2-year detention at a South Carolina Navy brig.

A shout-out to great blog work getting noticed

Scott Henson has started 2008 on fire at Grits for Breakfast, and some of the powers-that-be are taking note. Specificaly, on Friday in this post, titled "Court of Criminal Appeals Workload Declining under Judge Sharon Keller," Grits documented a caseload decline in Texas's highest criminal court and suggested that "CCA judges just don't work as hard as they used to." Within 48 hours, Grits had received and posted this thoughtful response from a judge on the court. This passage provide a flavor of the overall response:

The total number of petitions for discretionary review that were filed with the CCA in fiscal 2007 was 1,661. The court has no control over that number. Both defendants and the State have a statutory right to file such petitions. The Court granted 149 petitions–that is, it agreed to hear 149 new discretionary cases in 2007. By comparison, the total number of cases filed in the U.S. Supreme Court during its 2006 Term was 8,857, and it heard 78 civil and criminal cases.

Beyond my interest in the substantive specifics of this debate, it is great to see a serious reform advocate and a prominent judge engaging on these important topics directly in the blogosphere.

Further, as the links below document, Scott is off to a flying start in 2008 covering a number of other important criminal issues dear to my heart:

Virginia's prison population projections

This new article from the Richmond Times-Dispatch provides an effective review of a prison population growth problem facing Virginia (and which is also facing so many other states). Here is how the article starts:

Since 1990, in response to rising crime, predictions of rising crime and tougher sentencing, Virginia has approved 21,000 new prison beds at a cost of more than $1 billion. Barring the unexpected, more prisons are in Virginia's future.

By 2013, Virginia's prison population is expected to grow by 6,700 men and women to 44,700. A half-dozen major prison projects -- costing roughly $300 million -- are planned, under way or have been recently completed. As of June 30, 2007, there were 38,007 state inmates -- 32,651 in more than 40 prisons, field units, work release centers and one privately run prison. The rest were held for the state in local and regional jails.

The Virginia Department of Corrections, now the state's largest agency with more than 13,000 employees, manages a population of felons larger than the cities of Manassas, Petersburg, Fredericksburg or Winchester. "More offenders are being committed to prison, and they are incarcerated, on average, for longer periods," Deputy Secretary of Public Safety Barry Green said. The department's annual budget topped $1 billion this year for the first time.

Intuitions, institutions and sentencing reform

I have a gut feeling that this new article from by Paul Robinson and John Darley, entitled "Intuitions of Justice: Implications for Criminal Law and Justice Policy," is a very important read for anyone seriously interested in sentencing reform. Here is the start of the abstract:

Recent social science research suggests that many if not most judgments about criminal liability and punishment for serious wrongdoing are intuitional rather than reasoned. Further, such intuitions of justice are nuanced and widely shared, even though they concern matters that seem quite complex and subjective. While people may debate the source of these intuitions, it seems clear that, whatever their source, it must be one that is insulated from the influence of much of human experience because, if it were not, one would see differences in intuitions reflecting the vast differences in human existence across demographics and societies. This Article explores the serious implications of this reality for criminal law and criminal policy.

When discussing the challenges of transforming criminal justice institutions, this article echoes some of the themes I developed in this recent article entitled "Rita, Reasoned Sentencing, and Resistance to Change."

Terrific review of Obama's criminal justice record

Over at TalkLeft, Jeralyn has this extended post, titled "Obama and Defendants' Rights: Progressive Or Not?", which reviews his record on various criminal justice issue over the past decade. Here is how Jeralyn describes her review:

Where does Obama stand on criminal justice issues? Is he really a progressive? Will he stand up for the rights of the criminally accused ... or just those of the wrongfully charged or convicted?

He's been quick to point out his admirable work in Illinois getting legislation passed to require mandatory taping of police interrogations and enact some death penalty and racial profiling reforms. He has complained about the racial disparity in crack-powder cocaine sentences and once advocated abolishing mandatory minimums.... More recently, he has retreated to promising a review of mandatory minimum sentences.

Since the mainstream media seems incapable of presenting anything but his words promising change, hope, optimism and a "working majority" (meaning compromise with Republicans), I took an afternoon to research his record going back to 1998. The results, some progressive and laudatory, others decidedly not, as well as my prior posts on his crime record and statements as U.S. Senator and presidential candidate, are detailed [in this post].

Though not exactly on-point, anyone interested in looking even deeper Obama's professional history should be sure to check out this post at the WSJ Law Bog, titled "Barack Obama Was Once a Lowly Law-Firm Associate."

January 6, 2008

The Baze argument (finally) and the long litigation path to Baze

About 12 hours from the time I am writing this post, the Supreme Court will finally hear oral arguments in Baze v. Rees, the case from Kentucky exploring the constitutionality of that state's lethal injection protocols. I say "finally" because, as a result of its September cert. grant and subsequent stay rulings, the Court has with Baze already created the longest execution moratorium in the US for more than a quarter century. And since it is unlikely that we will get any ruling in Baze for months, we many not see an end to this moratorium for a long time.

Fortunately, there is plenty to read to gear up for the argument and then await a ruling: SCOTUSwiki has this extended review of the case basics, as well as links to various additional coverage; How Appealing has collected lots of the latest major media coverage in posts here and here and here; and video coverage is with two lethal injection litigators is available from a C-Span program at this link. And all my Baze coverage is assembled in this category archive.

As regular readers know, I have been following lethal injection litigation closely since the start of this blog and well before the Baze grant. I believe my first major post on the topic was this post, titled "The legal attack on lethal injection," from April 2005. Notably, that post discussed the trial court hearing in the very case that is to be argued tomorrow before the Justices. In the same spirit, here is an abridged blog/legal history with a few milestones (and posts) on the topic before SCOTUS finally took up Baze:

Do Baze and Kennedy and big SCOTUS cases depend on just one Justice?

In the Legal Times, Tony Mauro has this new piece on the state of SCOTUS headlined, "For the Supreme Court, a Docket Full of Drama: High-profile election-year cases will keep justices in the limelight." The piece begins with a discussion of the Baze lethal injection to be argued tomorrow morning. And, though new, the article is already a bit dated because it was obviously written before the cert grant in Kennedy, the case from Louisiana that will test the constitutionality of child rape as a capital offense (details here and here).

An effective post here by Eugene Volokh has me wondering whether Baze and Kennedy and the other big capital cases this Term all will turn on the thoughts and votes of a single Justice, Anthony Kennedy. Since Justice O'Connor's departure two years ago, nearly all the significant capital rulings by the Court have been 5-4 rulings with Justice Kennedy being the swing vote. If past is prologue, there is every reason to expect and predict that the outcomes in both Baze and Kennedy will turn on Justice Kennedy's views on lethal injection and capital punishment for non-homicide crimes.

And yet, Eugene's post suggests the possibility that gender and other concern could perhaps impact the traditional perspectives of some Justices in Kennedy. And, as I have suggested in this prior post, I think the peculiar nature of the issues and dilemmas raised in Baze could skew somewhat the recent 5-4 voting dynamics. However, this may be my own wishful thinking because I am eager, when contemplating the possible outcomes in Baze and Kennedy, to do more than just try to psychoanalyze Justice Kennedy.

Reflecting on these realities highlights for me, yet again, why I find the Supreme Court's non-capital jurisprudence sooooooo much more interesting than its capital jurisprudence. Notably, Justice Kennedy has not been a swing vote in any single one of the Court's Apprendi line of cases over the last decade. Indeed, in many of these cases, a fascinating array of different Justices have been key swingers, ranging from Justice Thomas (in Almedarez-Torres), to Justices Scalia and Breyer (in Harris), to Justice Ginsburg (in Booker). Moreover, in other cases the final vote counts and the nature of the opinions are often pleasantly surprising: Cunningham was a 6-3 decision with the new Chief joining the Blakely five; Rita was technically an 8-1 decision though Justice Scalia wrote a dissent-like opinion and Justice Souter dissenting directly; Gall and Kimbrough were technically 7-2 decisions, but only Justice Alito dissented on the main merits.

With Olympics coming, China works on its capital conventions

Recently, Chinese rights advocates ... have seen progress within a legal system that each year is estimated to execute more people than all other countries combined. Legislation enacted in 2006 requires the high court to review all death sentences, a step that had been dropped two decades ago.

Facing pressure before the 2008 Olympics in Beijing, China reportedly has scaled back the pace of executions. Although the government considers the number a state secret, China executed 1,051 people in 2006, accounting for two-thirds of the 1,591 put to death worldwide that year, according to statistics from Amnesty International, often based on media reports. That represented a 40% drop from China's recorded total of 1,770 the previous year. Yet because of state secrecy, some activists believe that the number of executions could be as high as 10,000 to 15,000 a year....

Sixty-eight offenses, including such nonviolent crimes as tax evasion and pornography distribution, carry the death penalty. Officials are considering reducing the number of crimes punishable by execution, but say corruption, bribery and national security violations might still lead to death sentences.

The reforms, advocated by a growing lobby of Chinese lawyers and scholars, are part of a policy that officials call "kill fewer, kill carefully." It calls for improved trial and review processes, and requires that all death penalty appeals be heard in open court. Experts are divided over how much substance the reforms carry.

Relatedly, as detailed in recent media report, China is moving toward lethal injection over firing squads as its prime execution method. As this Guardian story explains:

China's executioners are to step up the use of lethal injections, a senior court official told state media, in order to make executions "more humane" in the world's leading practitioner of capital punishment.

Maybe accountants and consultants should make sentencing policy

This new AP story reports on a new report about Oklahoma's prison done by a consulting firm, which highlights and suggests solutions to problems facing many states. Here are excerpts:

Oklahoma prisons are antiquated and the state’s prison system is underfunded, according to an exhaustive prison audit made public Friday that says policies requiring some felons to serve 85 percent of their sentences are causing Oklahoma’s prison population to surge.

The audit by MGT of America, Inc., recommends that the Legislature immediately appropriate more than $25 million for state prisons, including almost $14 million to secure 660 maximum-security cells at a private prison in Davis and more than $5 million to hire additional correctional and pardon and parole officers. It also recommends that the governor be removed from routine review of parole requests and that guidelines for diversionary drug courts be changed as part of a plan to cut about $18 million a year from the state’s $477 million prison budget....

The study predicts that Oklahoma’s inmate population will rise from about 25,000 currently to almost 29,000 by 2016. The state already has the fourth highest incarceration rate in the nation. “The increase in the prison population is being largely driven by a longer length of stay and not increased admissions, which are flat,” the audit states.

Since 1999, lawmakers have adopted sentencing policies that emphasize the so-called “deadly sins,” a list of 19 violent offenses that require those convicted of them to serve at least 85 percent of their sentence. The offenses include murder, rape and some forms of robbery, burglary, arson and child molestation. “Changes in the above policies would have a significant impact on the future size of the prison population,” the study says.

In addition, Oklahoma’s parole rates are significantly lower than other states, the audit says. Oklahoma is the only state in the nation in which the governor must sign off on every inmate parole request. It recommends that the governor be involved in the process only for certain heinous crimes similar to guidelines in Maryland and California, where governors play limited roles in the parole process involving inmates convicted of violent crimes or serving lengthy sentences. “Routine parole decisions should be the sole responsibility of the Pardon and Parole Board,” the report says.